Protection for protesters

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After 17 years of litigation, the Supreme
Court ruled last week that antiabortion
protesters can't be punished as racketeers
under the loosely worded and maddeningly
vague Racketeer Influenced and Corrupt
Organizations Act. Congress passed the law
in 1970 to make conspiracy indictments of
mobsters easier. From Day 1, it was obvious
that someone would use the law to hammer
political opponents. The inducements were high--the chance to smear
adversaries as racketeers and the tripling of damages awarded by a jury. And
as lawyers were quick to figure out, activists across the country could be
defined as a conspiracy and controlled by a single court injunction.

Reaction to the political
use of RICO was muted
because the
targets--antiabortion
demonstrators--are very
much out of favor with
civil liberties groups and
the chattering classes.
One who did speak up,
Harvard law Prof.
Charles Ogletree, said
this use of RICO "is
unprecedented and
raises serious questions
about chilling important
opportunities for political
protest. This stretches
the law beyond its logical limits."

The National Organization for Women and two abortion clinics sued under
RICO. The case did not involve lethal violence, such as arson and bombing.
The antiabortion activists were accused of making threats, blocking clinic
doorways, putting glue in door locks, occasionally grabbing and pushing
doctors or patients, and "creating an atmosphere" that made arson and
bombing possible.

Criminal acts deserve punishment, but RICO allowed these mostly low-level
offenses to be lumped together and seen as a broad conspiracy. People who
join sit-ins or blockades or who lie down in front of clinics may expect to
spend a night or two in jail. Under RICO, they stood to lose their homes and
businesses and spend years in a federal prison. Joseph Scheidler of the
Pro-Life Action League, a target of NOW, owed $440,000 after his RICO
conviction, including triple damages. To pay this off, he took out a $70,000
loan and his house in Chicago was placed in escrow pending the outcome of
the case. As a result of the Supreme Court ruling, he will now get it back.

Redefining property. The Supreme Court ruling said RICO's antiextortion
and racketeering provisions apply only when force is used to "obtain
property." NOW had argued that a woman's right to medical help and a
clinic's ability to stay open for business qualified as property. The concepts of
"extortion" and "obtaining property" used in RICO cases come from another
law, the Hobbs Act. Courts have constantly broadened the meaning of these
words. The Supreme Court put a stop to this process. The court also lifted the
injunction that had halted the protesters' campaign against clinics.

The court's lopsided 8-to-1 vote is partly explained by the justices' awareness
that RICO could be used against antiwar protesters. Another factor is that
clinics are now protected by the Freedom of Access to Clinic Entrances Act.
Federalism was a concern, too--RICO's possible role in converting new
classes of local offenses into federal crimes.

RICO is a ghastly law. Two minor illegalities committed over a 10-year period
can trigger a RICO application. G. Robert Blakey, who helped draft the
statute, says that if one protester trespasses on the grass and another
protester in another city throws a rock through a window nine years later for
the same cause, their constitutional right to demonstrate could be redefined
as "extortion" under RICO. To avoid this, demonstrations would have to be
flawless, but, as he says, "perfect demonstrations aren't possible."

Groups and individuals across the political spectrum got the point and filed
briefs backing the abortion protesters. They included People for the Ethical
Treatment of Animals, Martin Sheen, and Concerned Women for America. In
its brief, PETA said its members had been sued under RICO for actions in an
animal testing laboratory. Some civil rights activists believe that if RICO had
become law a decade earlier, segregationists would have used it to quash the
movement.

The American Civil Liberties Union has had a hard time coping with RICO. It
came out against the law early, then waffled for years in response to
abortion-rights lobbying both outside and inside its structure. Harvey
Silverglate, a board member of the Massachusetts ACLU, said sympathy for
abortion rights caused the ACLU to drop its guard on a serious violation of
political freedom. In 1990, Lynn Paltrow of the ACLU Reproductive Freedom
Project told me: "It's ACLU policy to oppose application of RICO, but there are
those on staff who feel that as long as RICO exists, this kind of behavior
[aggressive antiabortion tactics] does sort of fit." I wrote here at the time: "In
other words, RICO is totally bad, but sort of useful." Now that the court has
forbidden the abortion lobby to use RICO as a club, the ACLU might feel free
to return to a principled position.